Anway v. Tjoland
| Decision Date | 07 September 2021 |
| Docket Number | A21-0096 |
| Parties | In re the Matter of: Elise Ann Anway, And On Behalf of Minor Children, petitioner, Respondent, v. Jacob Dean Tjoland, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).
Crow Wing County District Court File No. 18-FA-20-3517
Christopher J. Macy, Legal Aid Service of Northeastern Minnesota, Brainerd, Minnesota (for respondent)
Richard Dahl, Dahl Law Firm PA, Brainerd, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Slieter, Judge; and Rodenberg, Judge.
Appellant Jacob Dean Tjoland appeals from the district court's issuance of an order for protection (OFP) against him, arguing that the district court erred by denying his oral motion at the OFP hearing to remove the presiding judicial referee. We affirm.
In October 2020, respondent Elise Ann Anway petitioned for an OFP against appellant to protect herself and the parties' two children. The district court issued an ex parte OFP. The matter was then scheduled for a hearing on October 26, 2020, before a district court judge. With the consent of both parties, the district court judge continued the hearing.
The district court then issued a written notice of the continued OFP hearing to the parties, setting a remote hearing-because of the COVID-19 pandemic-for November 9, 2020, using "Zoom" technology. Appellant was personally served with the notice of hearing on October 27, 2020. The notice did not identify by name who would preside at the hearing but instead stated that the hearing would be held before a "Judicial Officer."
On November 9, 2020, the parties appeared for the remote hearing. A judicial referee was present to preside over the hearing. Following a preliminary discussion between appellant's counsel and the referee, the referee asked both parties if they were "ready to proceed." Both parties responded affirmatively. Appellant's counsel then moved to remove the referee and requested that a district court judge hear the case. The attorney stated that he had "presumed" that the district court judge who had signed the order for continuance would be presiding at the continued hearing. He argued that he should be permitted to strike the referee because the notice of hearing "doesn't have an assignment of a judge." Respondent's counsel replied that he, in contrast, had been aware that the referee would be presiding over the hearing and was prepared to proceed. He stated that his client had received the same notice of hearing that appellant received, and that "[i]t didn't take much research" for counsel to learn that the referee would be hearing the case.
After a brief recess during which the referee considered the issue, the referee ruled that she would proceed with the hearing. At the conclusion of the hearing, the referee determined that sufficient evidence supported issuing an OFP. Accordingly, the district court entered an OFP.
This appeal followed.
Appellant argues that the judicial referee erred by not removing herself from the OFP hearing upon his oral objection. He requests that we reverse the OFP and remand to the district court for a new OFP hearing with instructions that the district court in the future name the assigned judicial officer in its notices of hearings.
The rules concerning removal of a referee are derived from the rules for removing a judge. Minn. R. Gen. Prac. 107 1991 task force cmt.; see Minn. R. Civ. P. 63.03 (). Caselaw addressing judicial removal therefore informs our decision in this case. That caselaw explains that a properly filed notice of removal "automatically results in the judge's removal." In re OCC, LLC, 917 N.W.2d 86, 91 (Minn. 2018). "Failure to honor a proper removal notice is reversible error requiring a new hearing." Citizens State Bank of Clara City v. Wallace, 477 N.W.2d 741, 742 (Minn.App. 1991). The requirements governing removal must "be liberally construed to safeguard both in fact and in appearance the constitutional right to a fair and impartial hearing." Id. Whether a removal notice complies with procedural requirements is a question of law, which this court reviews de novo. Id.
Minn Stat. § 484.70, subd. 6 (2020), and Minn. R. Gen. Prac. 107 govern the removal of a referee. Section 484.70, subdivision 6, provides that a referee cannot hear any contested matter if a party timely "objects in writing to the assignment of a referee." Rule 107, in turn, provides that a party objecting to a referee's assignment "shall serve and file the objection within 14 days of notice of the assignment of a referee to hear any aspect of the case, but not later than the commencement of any hearing before a referee." The statute expressly requires that an objection be "in writing," and the rule, by requiring a party to "serve and file" an objection to the assignment, implicitly contemplates a writing.
Here, appellant objected orally to the referee's assignment to the OFP hearing; he filed no written objection and made no request for a delay to file a written objection. Therefore, even under a liberal construction of the applicable statute and rule, appellant failed to properly object to the referee's assignment.[1]
Appellant concedes that he did not comply with the written-objection requirement. But he contends that the referee should have honored his oral removal request for two reasons. First appellant argues that the use of the phrase "assignment of a referee" in the statute and rule required the district court to include the name of the referee in the notice of hearing. But the plain language of section 484.70, subdivision 6, and rule 107 contains no such requirement. We agree with appellant that the best practice would be for the district court to include the name of the assigned presiding officer in its...
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